Valdez & Frazier (No 2)
[2017] FamCAFC 208
•5 October 2017
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 2) | [2017] FamCAFC 208 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where the primary judge dismissed the appellant’s contravention application – Where the primary judge’s interpretation of the final orders alleged to have been contravened was open to him – Appeal dismissed. FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Where the primary judge found the test for apprehended bias was not satisfied – Where the primary judge’s articulation of law and principle was entirely correct – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application for adjournment – Where the appellant sought an adjournment due to the respondent’s failure to file submissions as ordered – Appellant given leave to file written submissions in response – Application to adduce further evidence – Where the circumstances in which the Court can accept further evidence are circumscribed – No circumstance established – Applications dismissed – Where the appellant sought leave to file an application seeking that the proceedings be transferred to the Federal Court or Supreme Court – Where the application is an attempt to re-litigate a matter already determined – Leave refused. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISQUALIFICATION – Where the appellant seeks the recusal of the appeal bench – Application brought after hearing – Where the test for apprehended bias is not satisfied – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Costs ordered in favour of the mother on party/party basis. |
Family Law Act 1975 (Cth), ss 70NBA, 94(2A), 97, 102QD, 102QE, 117
| Family Law Rules 2004 (Cth), r 22.38 CDJ v VAJ (1998) 197 CLR 172 | ||
| APPELLANT: | Mr Valdez | |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| FIRST APPEAL NUMBER: | EA | 30 | of | 2016 |
| SECOND APPEAL NUMBER: | EA | 38 | of | 2016 |
| DATE DELIVERED: | 5 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 22 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2016 1 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 68 [2016] FamCA 153 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys |
Orders
The Amended Application in an Appeal filed 14 June 2017 is dismissed.
The Applications in an Appeal filed 14 November 2016 and 20 March 2017 are dismissed.
Leave is refused for the father to file the Application in an Appeal dated 10 March 2017.
The appeal EA 30 of 2016 filed 11 March 2016 is dismissed.
The appeal EA 38 of 2016 filed 22 March 2016 is dismissed.
The father pay the mother’s costs of and incidental to appeals EA 30 of 2016 and EA 38 of 2016 and the Applications in an Appeal referred to in Orders (2) and (3) above on a party/party basis, such costs to be assessed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 30 of 2016; EA 38 of 2016
File Number: SYC 2226 of 2013
| Mr Valdez |
Appellant
And
Renee Frazier
Respondent
REASONS FOR JUDGMENT
On 8 February 2016, Le Poer Trench J (“the primary judge”) had before him a contravention application filed on 12 October 2015 by Mr Valdez (“the father”) alleging that Ms Frazier (“the mother”) had contravened parenting orders made in the Federal Circuit Court of Australia on 24 July 2014 in respect of the child of the parties, B born in 2011 (‘the child’).
The father represented himself as he had done throughout the proceedings and the mother was represented by counsel.
Prior to the commencement of the hearing, the father informed the primary judge that he wished to make an oral application that his Honour be disqualified from hearing the matter. He was permitted to make the application, and judgment was reserved. On 15 February 2016, his Honour delivered reasons for judgment and made an order dismissing the father’s application for recusal. This order is the subject of appeal EA 30 of 2016 (“the Disqualification Appeal”) filed by the father on 11 March 2016.
On 1 March 2016, the primary judge heard the father’s amended contravention application filed 24 February 2016, and the father’s submissions that the July 2014 orders should be varied pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”). The primary judge dismissed the contravention application and the father’s application for variation of the July 2014 orders. These orders are the subject of appeal EA 38 of 2016 (“the Contravention Appeal”) filed by the father on 22 March 2016.
Before turning to the specifics of the appeals it is helpful to outline the procedural background of the matter.
Final parenting orders were made in the Federal Circuit Court on 24 July 2014, shortly before the child turned three. These provided that the mother and father have equal shared parental responsibility for the child, save that the mother have sole parental responsibility for decisions about the child’s education. They further provided that the child live with the mother and spend time with the father, such time gradually increasing to five nights a fortnight when the child began school.
The father appealed these orders, asserting in part that the trial judge and the expert in the case relied on “extrinsic evidence/research literature” which the father alleged was fraudulent. Prior to judgment being delivered the father sought that a member of that Full Court bench recuse himself from the proceedings. This application was dismissed on 28 October 2015 and the appeal was dismissed on 15 April 2016. The father’s subsequent application for special leave to the High Court was dismissed on 30 August 2016.
Since the final parenting orders were made the proceedings have been transferred to the Family Court of Australia. It is in this context that the applications before his Honour arose.
Recusal of the Appeal Bench
The appeals were heard on 22 March 2017 and judgment was reserved. On 10 May 2017, after the conclusion of the appeal hearing, the father filed an Application in an Appeal in which he sought that each member of the bench recuse themselves on the basis of “bias and/or apprehension of bias and/or ultra vires conduct”. He supported that application with an affidavit also filed on 10 May 2017.
On 14 June 2017 the father filed an Amended Application in an Appeal together with a supporting affidavit and an affidavit sworn by Ms M on 9 June 2017. The father was informed that the application would be determined in chambers without an oral hearing pursuant to r 22.38(2)(a)(ii) of the Family Law Rules 2004 (Cth) (“the Rules”). The mother did not oppose this course nor did she file any response or make any submissions.
It is appropriate that we deal with this application before determining the appeals. For the reasons we will later give, we propose to dismiss the application.
Other Applications in the Appeals
Application for an adjournment
By Application in an Appeal filed on 20 March 2017 the father sought that the appeals be adjourned for hearing until 27 March 2017 due to the mother’s failure to file and serve submissions as ordered, or until the outcome of the father’s special leave application to the High Court if that date was later.
At the commencement of the proceedings we indicated to the father that we intended to proceed with the appeal and that he would be given an opportunity to file written submissions in response to the submissions of the mother if he wished to do so. He subsequently did so. Accordingly, this application is dismissed.
Application to adduce further evidence
By Application in an Appeal filed on 14 November 2016 the father sought to adduce further evidence in the appeals, being video evidence of the child’s alleged distress as a result of the current parenting orders.
It is well established that the circumstances in which this Court may adduce further evidence are circumscribed, as set out by the High Court in CDJ v VAJ (1998) 197 CLR 172. None of these circumstances is established in terms of the evidence sought to be adduced by the father. Indeed, the evidence is clearly controversial and in any event, we fail to see how it relates to the subject matter of the appeals which deal with disqualification and the dismissal of a contravention application. The application to adduce further evidence will therefore be dismissed.
Transfer of proceedings
By application received by the Appeal Registry on 10 March 2017, the father sought that all the proceedings before the Family Court be transferred to the Federal Court of Australia or the Supreme Court of New South Wales. The father was advised he should seek leave of the Full Court to file the application. We received oral submissions on the application at the hearing of the appeal.
The relief sought by the orders was effectively identical to orders that were originally sought in the Application in an Appeal filed 14 November 2016. The paragraphs seeking those orders were rejected for filing by the Appeal Registrar. The father sought a review of this decision and this review was dismissed by Ainslie-Wallace J on 17 February 2017 who found that the orders sought were “so ‘obviously untenable’” that they had “no reasonable prospects of success”.
The father submitted that the orders sought in the 10 March 2017 application were in different terms to those previously sought and rejected for filing; the difference being the legislation upon which the father relied to support the transfer of the proceedings. However, the reliance on this different legislation does not change the gravamen of the father’s contentions; that is, that the proceedings should be transferred to either the Federal Court or the Supreme Court as the judges of the Family Court are affected by bias. The question of whether such application should be accepted for filing was dealt with by Ainslie-Wallace J previously, and we consider that this application is an attempt by the father to re-litigate the matter and is nothing short of an abuse of process. We thus refuse leave for the father to file the application.
The appeals
In our opinion both appeals should be dismissed. Neither raises any question of general principle, and we thus propose to give reasons dismissing them in short form pursuant to s 94(2A) of the Act.
The Disqualification Appeal (EA 30 of 2016)
The primary judge’s reasons for judgment
As the primary judge recounts in his reasons for judgment delivered on 15 February 2016, the father sought an order for his Honour’s recusal by an oral application made at a time when the court was about to hear the father’s contravention application which had been filed on 12 October 2015. The primary judge explained:
1.… The recusal application was framed in the following words.
That your Honour recuse yourself from further hearing the applications brought by the [father] on the basis of apprehension of bias held by the community in general, such apprehension arising from the Family Court of Australia engaging, for the purpose of research, Ms Jennifer McIntosh between 2006 to 2013. The research was commissioned for the purpose of allowing the Family Court of Australia to disregard the Parliament’s clear intent that both parents be regarded as having equal parental capacity with a view to providing a pretext for the Court’s orders that children only live with one parent and restrict time spent with the other parent.
The thrust of the application is best illustrated by his Honour’s reference to the father’s affidavit in support of that application which said at [13]:
4. The Learned, Honorable [sic] and Esteemed Judges and Justices of these courts have repeatedly and reflexively lied about this evidence, sought to suppress evidence of [the child’s] distress, evidence of the Respondent mother’s breach of court orders and the Respondent’ mothers (sic) efforts to continue abusing the Applicant father directly and indirectly using [the child] as a weapon.
5. On 2 June 2015 the Respondent mother exploited the maternal supremacist prejudices, paranoia’s (sic) and passions of these courts to launch a further episode of spousal abuse against the Applicant father.
His Honour concluded that the father had failed to identify any particular conduct on his part in the proceedings which would cause a fair-minded observer to reasonably apprehend that he would not approach the application with an independent or impartial mind and refused the oral application for him to recuse himself.
Grounds of appeal
There are three grounds of challenge to his Honour’s orders. Each ground is supported by comment and opinion. None of the grounds raise a competent challenge to the primary judge’s orders nor do they raise a matter of principle. The additional written submissions raise issues not traversed before the primary judge, are irrelevant and make assertions and comments.
The law relating to apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the majority of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 345:
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Apart from failing to identify and firmly establish what it is said might lead the primary judge to decide a case other than on its legal merits, the father fails at the second step as well. There is no articulation of any logical connection between the matters raised and the feared deviation from the course of deciding the case on its merits (see Re JRL; Ex parte CJL (1986) 161 CLR 342).
We add, further, that his Honour’s articulation of the law and principle to be applied was entirely correct and no error attended his decision. Accordingly, the appeal must fail and will be dismissed.
The Contravention Appeal (EA 38 of 2016)
The primary judge’s reasons
The father contended that the mother had contravened orders 2(d)(ii) and 2(d)(iii) of the July 2014 orders. These concerned the required communication between the parties in relation to the child’s attendances on a general practitioner or referrals to, or appointments being made with, a specialist medical practitioner or health professional. The primary judge said:
12.I do not accept the father’s interpretation of the orders 2(d)(i) to (iv). In my view, there is a clear requirement to take action to inform the other parent when an appointment is made for [the child] to see a “medical practitioner” or “therapist” or “counsellor” or other “health professional” who is not [the child’s] treating general practitioner. As the evidence relied upon by the father to prove the count of contravention only relates to [the child] attending upon his general practitioner (see annexure A to the husband’s affidavit of 22 February 2016), he cannot prove the contravention of order 2(d)(iii), and consequently counts 6 and 9 must fail.
In relation to the alleged contravention of Order 2(d)(ii) his Honour said:
18. This count must fail for the same reasons set out in relation to count 10. Additionally, there is no evidence to establish that the mother knew if any tests had been ordered or if the results had returned to the general practitioner. The father relied upon pages102, 103 and 108 of his affidavit of 12 October 2015 to establish this contravention. None of those pages provided evidence which would support a finding of contravention as alleged by the father.
As a consequence the primary judge dismissed the father’s amended contravention application.
His Honour also made an order dismissing the “application of the father for variation of the parenting orders pursuant to s 70NBA of the Family Law Act”.
Grounds of appeal and submissions
The Notice of Appeal originally challenged all of the orders made by the primary judge. Some confusion attended the order dismissing the “application of the father for variation of the parenting orders pursuant to s 70NBA of the Family Law Act” at the appeal hearing. The father had filed an Application in a Case on 12 October 2015 seeking a variation of the July 2014 orders. The father submitted that the rejection of his application to vary the parenting orders under s 70NBA effectively brought to an end his capacity to prosecute the variation he was seeking.
However, it is abundantly clear from the transcript that his Honour did not, nor did he intend to, hear the application of 12 October 2015 at the contravention hearing and that the “only area” in which he was prepared to consider making any variation of orders under s 70NBA was in respect of the specific order the subject of the contravention proceedings, that being Order 2(d).
During discussions between the bench and the father on appeal, it emerged that the father had misapprehended both the nature of proceedings on foot before the primary judge, and many of the comments made by his Honour, leading to his misunderstanding that the entirety of his application for variation of the parenting orders had been dismissed. As we pointed out to the father, and which he ultimately accepted, what had been transferred to the Family Court by the Federal Circuit Court included his application for variation of the final parenting orders. His Honour’s dismissal of the application under s 70NBA did not affect his rights to apply to vary the parenting orders because his application made on 12 October 2015 was still before the court and had not yet been dealt with. After this discussion the father ultimately indicated he would not press the appeal against his Honour’s refusal to make orders pursuant to s 70NBA, though he still pursued the appeal in relation to the dismissal of the contravention application.
The Notice of Appeal asserts three grounds of appeal in relation to his Honour’s dismissal of the contravention application. Each ground is particularised by unsupported comment and opinion. The written submissions filed by the father are discursive and stray considerably from any matters of relevance as to whether or not his Honour’s orders could be in error.
The contravention application before the primary judge amounted to an argument about the meaning of the orders made in July 2014. His Honour rejected the father’s interpretation of those words, and, in our view, in doing so was entirely correct.
The grounds do not raise a competent challenge to his Honour’s orders nor do they raise any issue of principle and the appeal should be dismissed.
Reasons for dismissing the Recusal Application
As we have indicated, the father sought that each member of the Full Court bench that had heard his appeals recuse him or herself. It is of assistance to set out in full the orders sought in the amended application:
1) That filing this application, a power delegated by applicable Rules of Court per section 37A, be considered by a Judge, under Section 26D(2) of the family law Act.
2) That the appeal be reopened to hear the orders sought in this application, and the further evidence contained in the affidavits of the appelant and [Ms M].
3)That this application be heard in the presense of the parties.
4)That the order for the appelant’s written submissions be made by 19 June 2017 be set aside.
5)That, for each year from 2003 to date, the Court provide an unredacted/uncensored list of the members of its associations: The Association of Family and Concilliation Courts and The Association of Family and Concilliation Courts (Australian Chapter).
6)That the Honorable Cheif Justice Bryandt recuse herself on the basis of bias and/or apprehension of bias and/or ultra vires conduct.
7)That the Honorable Justice Murphy recuse himself on the basis of bias and/or apprehension of bias and/or ultra vires conduct.
8) That the Honorable Justice Justice Ainslie-Wallace recuse herself on the basis of bias and/or apprehension of bias and/or ultra vires conduct.
9)That leave is granted for the appellant to seek the following order. The appelant be permitted to complete submissions regarding the change of venue of any hearing arising out of these proceedings.
10)That the Court provide uncensored/unedited audio files of the hearings in these proceedings, including but not limited to the Full Court hearing of 22 March 2017, and permit these to be circulated to members of parliament and their staff (as required). Specifically, but not limited to, the forthcoming parliamentary enquiry into the family law courts, and any subsequent parliamentary enquires.
11) That the court grant leave for all affidavits and unredacted/uncensored transcripts of hearings in this matter, to be presented to members of parliament and their staff (as required). Specifically, but not limited to, the forthcoming parliamentary enquiry into the family law courts, and any subsequent parliamentary enquires.
12) That all costs orders against the apellant related to appeal EA30/2016 and EA38/2016 be considered after the conclusion of the property proceedings.
(Errors as in original; underline emphasis in original)
In his affidavit in support of the application, the father makes unsupported assertions and comment.
Nothing said by the father in that affidavit meets the criteria necessary to grant an application for recusal, which we set out above at [24]. First, the identification of what it is said might lead the judges to decide the case other than on the legal and factual merits does not appear. There is no attempt at a logical connection between the matters complained of and the assertion of feared deviation from the course of deciding the case on its merits.
In support of the orders sought in his amended application the father relies upon his affidavit sworn on 6 June 2017 and the affidavit of Ms M sworn 9 June 2017. The thrust of those affidavits is that the father felt that the atmosphere in the courtroom was “threatening” and hostile. He also objected to the presence of law students in the court room during the hearing of the appeal.
While the Act provides that all proceedings shall be heard in open court (s 97(1)), it is open to the court either on an application by a party or on its own motion to order that certain people not be present in court during all or part of proceedings (s 97(2)). No application was made by the father that people he identified as law students be excluded from the appeal hearing.
Neither do we accept the assertion of the father that he was unable to competently present his appeal in that other people being in the courtroom had an effect on his capacity to present his case and make submissions. Finally, we reject the assertion by the father and his witness that the bench behaved in a hostile or threatening way to the father, as is made clear by the audio tape of the proceedings. There is no merit in this application and no basis for reopening the hearing. The father filed extensive written submissions and was given every opportunity to present his case, which he did.
The application will be dismissed.
One further matter requires comment. On 12 May 2016 a vexatious proceedings order was made against the father prohibiting him from instituting proceedings under the Act against or in relation to the mother or the child, without first having been granted leave by the court. By subparagraph (b) the vexatious proceedings order was to apply to “and include any application made by or on behalf of the father to file any proceedings seeking parenting orders, orders for contravention and/or procedural orders to the Family Court or any court exercising jurisdiction under the Family Law Act, without leave” under s 102QD of the Act.
The three Applications in an Appeal were made after the vexatious proceedings order and hence required leave. No application for leave was made nor was there any compliance with s 102QE of the Act which sets out the requirements for establishing the conditions upon which leave could be granted. However as the need for leave was not raised, nor addressed in oral or written argument, we have not dismissed the applications on this basis but rather as indicated, on lack of merit.
Costs
At the conclusion of the appeal we invited submissions in relation to costs. Counsel for the mother submitted that if the appeal was dismissed he would seek an order for costs which would include indemnity costs in relation to the application received on 10 March 2017 on the basis that it was virtually in the same terms, or at least made on the same basis, as the application that was dealt with as a review of the Registrar’s decision and dismissed by Ainslie-Wallace J on 17 February 2017 (see Valdez & Frazier [2017] FamCAFC 18). The father opposes any order for costs.
Costs are governed by s 117 of the Act. Section 117(1) provides that “each party to proceedings under this Act shall bear his or her own costs”.
However, s 117(2) permits the court, if it is of the opinion there are circumstances that justify it in so doing, to “make such order as to costs … as the court considers just”.
Section 117(2A) sets out the matters to which the court must have regard in considering what order (if any) should be made under s 117(2).
Three matters, in our view, are relevant in this case. First, s 117(2A)(e); whether any party to the proceedings has been wholly unsuccessful in the proceedings. It is clear that the father has been wholly unsuccessful in both appeals and his Applications in an Appeal have been dismissed.
Secondly, s 117(2A)(g); such other matters as the court considers relevant. The matters before us involved two appeals and three Applications in an Appeal, all of which required responses by the mother who has been legally represented throughout the proceedings. As we have said, one application was a repetition of a review already dismissed. None had merit or enjoyed reasonable prospects of success. The father has at all times been self-represented.
Finally, it is necessary to consider s 117(2A)(a); the financial circumstances of each of the parties to the proceedings. We were informed, without objection, that there are ongoing proceedings between the parties which relate to property settlement but which are largely concerned with orders in relation to superannuation interests in which there is a disparity between the position of the parties at present which favours the father.
No party is entitled to litigate with immunity from costs and there is ample Full Court authority that says that impecuniosity is no bar to an order for costs being made where it is otherwise warranted. We are mindful too that the father has paid $15,000 in security for costs in relation to the appeal.
These matters persuade us that it is appropriate to make an order that the father pay the mother’s costs of and incidental to the appeal. However, we are not satisfied that the circumstances warrant an order for indemnity costs (see Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248; D & D (Costs) (No. 2) (2010) FLC 93-435).
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace and Murphy JJ) delivered on 5 October 2017.
Associate:
Date: 4 October 2017
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